Conflict of Interest and Benefit to Business: Introduction
CoCA appreciates the Department’s acknowledgement of the difficulties confronted by many marriage celebrants wishing to create viable celebrancy practices. The discussion papers stated:
“The past decade has also seen changes to the financial investment involved in being an authorised marriage celebrant, including the significant cost of obtaining the appropriate qualifications, the requirement to pay an annual celebrant registration charge and costs of ongoing professional development. Many new marriage celebrants are entering the profession with the expectation that they will be able to generate an income from their substantial investment in becoming an authorised celebrant.”
In 2002, wedding organisers/planners or wedding related businesses were specifically identified as people with Conflict of Interest and/or Benefit to Business:
- “Without the introduction of a conflict of interest criterion, there is no restriction on separating the interests of wedding organisers and celebrants.” 33
- “Celebrants will be unable to have an interest in other wedding related business as proposed by the conflict of interest reform.” 34
The reason for this concern is that many wedding planners or organisers work on commission from their referrals to a wide range of wedding industry products and services. This means it is not always transparent to the marrying couple exactly how much they are indirectly paying for their wedding planning service. This commission income can be a COI and/ or B2B risk, if refusing to solemnize the marriage because identification and/or other documents are not in order or the celebrant suspects consent to the marriage may be an issue. This income in addition to the celebrant’s fee for marriage solemnisation could be sufficient to become a higher priority than the legal requirements of the marriage.
As noted in this submission’s general introduction, CoCA has identified a range of work possibilities that, with further training and professional development, would enhance the viability of their celebrancy practices without jeopardizing their COI and B2B responsibilities. Likewise the “many of the skills required to provide a professional celebrant service translate readily into services” such as
- blessing-way (for pregnancy) and naming ceremonies
- ceremonies and celebrations for adolescents and young adults
- birthdays, anniversaries and other ceremonies/ celebrations, either as MC or celebrant
- life story documentation especially for the senior market
- pre-funeral planning
- funerals and memorials
- alternative funeral services such as independent funeral coordination, death doula services.
As noted under the Professional Development section of this submission, professional development can play a key role in supporting independent celebrants in building more viable professional celebrancy practices.
Recommendation 11:
That the Conflict of Interest (COI) and Benefit to Business (B2B) provisions be retained and strengthened to continue to provide parity with Subdivisions A and B Authorised Celebrants
The Coalition of Celebrant Associations opposes any relaxation of COI and B2B provisions, other than a few specific examples noted later.
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There are several reasons for this:
- To ensure all marriage pre-requisites, especially consent, are not compromised by COI and/or B2B issues.
- To uphold the status of marriage in Australian society by ensuring independent civil celebrants are seen as and are professional practitioners with high ethical standards comparable with the other subdivisions of Marriage Celebrants.
- To minimise exploitation of couples vulnerability at such an important rite of passage. Financial stress is one of the major factors in relationship breakdown.
/span>The 2002 Marriage Act Amendments clearly identified COI and B2B as an integral part of ensuring the professionalism of Subdivision C authorised celebrants:/span>
“In addition, persons will have to satisfy the fit and proper person criteria to which will be added a criteria that celebrants must avoid a conflict of interest.“35
If 50 years ago there was a need to protect couples from exploitation from Subdivision A and B celebrants then, that need has increased not reduced. With mass media the impact on the marrying public of the commercialisation of weddings services has escalated with the focus on all the ancillary products and services, not on the importance of the nature of marriage itself. /span>
Complaints about wedding suppliers are already high with Departments of Fair Trading around the nation and couples starting married life with increased debt caused by the cost of related services can increase economic stress on the couple. Repeated financial stress is one of the major factors in relationship breakdown.
Section 33 clearly views Subdivision A Ministers of Recognised Religions as requiring Conflict of Interest and Benefit to Business provision even though it is rare for this group to be de-registered on these grounds - likewise Subdivision B authorised celebrants. This is so even though the public‘s understanding and confidence in these two groups is high and these celebrants would be considered less likely to have a Conflict of Interest and Benefit to Business risk than Subdivision C authorised celebrants.
Section 33 (1) Removal from register
(1) Subject to this section, a Registrar shall remove the name of a person from the register kept by that Registrar if he or she is satisfied that:
d) that person:
i) has been guilty of such contraventions of this Act or the regulations as to show him or her not to be a fit and proper person to be registered under this Subdivision;
ii) has been making a business of solemnising marriages for the purpose of profit or gain; or
iii) is not a fit and proper person to solemnise marriages; or …
Subdivision B State and Territory Officers as public servants have Public Service Regulations that likewise are designed to prevent employed or contracted staffing having COI and B2B risks – actual, potential or perceived.
Previously the Department had required Subdivision C Authorised Celebrants to have no conflicts of interest or benefit to business upon appointment. Whilst regulating this may not be easy, COI and B2B provisions are enacted in a number of legislative areas.
Kym Duggan, Assistant Secretary, Family Law Branch, made this point in a letter 36 to all Celebrant Representative Bodies dated 28th February 2002, which states in part:
“The provisions will prevent a person having a conflict of interest between his or her interests as a celebrant and his/her business and other interests. The "other interests" will clearly cover for example, employment related interests”.
“The conflict of interest provisions is a standard provisions replicated in a number of pieces of Commonwealth legislation. …….”
“…… the inclusion of a statutorily defined conflict of interest provision is not a new concept.”
“The selection criteria operating under the current system of appointment states that marriage celebrant applicants must not have a conflict of interest or potential for such a conflict of interest in any of their business interests, hobbies or other interest connection with any of their business, hobbies or other interests.
These issues will need to be dealt with on an individual basis in the course of the application process”.
Even so, it is known that some areas of professional conduct can push the boundaries to the point that the public good is not served by businesses with profit as the motive. Section 31 a) and 31c) addresses these potential concerns even for Religious Denominations (Religion being one of the three earliest professions):
Section 31 Applicant may be refused registration in certain circumstances
1) A Registrar to whom an application for registration under this Subdivision is made may refuse to register the applicant if, in the opinion of the Registrar:
a) there are already registered under this Subdivision sufficient ministers of religion of the denomination to which the applicant belongs to meet the needs of the denomination in the locality in which the applicant resides;
b) the applicant is not a fit and proper person to solemnise marriages; or
c) the applicant is unlikely to devote a substantial part of his or her time to the performance of functions generally performed by a minister of religion.
However there are other factors that limit the number of celebrants in Subdivision A and B – predominantly economic costs to the church or the registry. Private people have no entitlements to demand employment in either sector, which leaves Subdivision C particularly vulnerable to other forces that encourage or pressure people to find work.
Allowing more latitude for COI and B2B increases the risk to the service of valid marriage provided by the celebrant becoming secondary to the other products and services the celebrant is engaged in and from which they derive financial or other benefits.
In particular, Marriage Celebrants would be able to be trained and employed by big businesses that have “for-profit” goals. Being employed by for-profit businesses would make the celebrant more vulnerable to pressure from their employers to take short cuts with the marriage to protect the financial gain forthcoming from the wedding reception, accommodation and other associated products and services.
Recommendation 12:
That civil marriage services be acknowledged as one component of the Civil Celebrancy profession, where the celebrant provides a range of ceremonies if they so choose, and not a business activity within the Wedding Industry where the celebrant provides other commercial wedding services that the public would not expect to be provided by Subdivision A Ministers of Recognised Religions nor of Subdivision B State and Territory Officers.
Australia has led the world in civil ceremony (our Civil Marriage Celebrant Program was a world first) but the general public’s understanding of the independent Civil Celebrant’s role is poor. More public education on the professional role of civil celebrants would assist in raising the profile of the Commonwealth Celebrant program. 37
Marriage work is particularly desirable to those in the wedding industry, people with family responsibilities wanting flexible work and people seeking self-employment for more autonomy in decision making and working conditions.
Taking single items from Section 39 or anywhere in the Act from a business model perspective is not appropriate. For example, that Subdivision C Authorised Celebrants are remunerated for their time and expenses in provision of their services is not of itself a Conflict of Interest and Benefit to Business, any more than it is for Subdivision A and B Authorised Celebrants or any other profession such as nursing, teaching, law etc.
The conclusion of examining these issues as related to Commonwealth Marriage Celebrants were that:
- Subdivision C authorised civil celebrants are part of a developing Civil Celebrancy profession, not a business activity, and
- in simple terms, a profession = community service goal + ethics + specific knowledge and skill, with or without the need for business knowledge and skill. The latter is primarily the need of an independent professional in private practice.
That the terminology used in the Marriage Act and Marriage Regulations be strengthened, and more clearly specify the types of activities that are and those that are not considered a conflict of interest or benefit to business with the view to narrowing those areas in dispute.
It is noted that the Marriage Act 1961 in Sections 31 and 33 uses stronger terminology for the role of the Registrar. For example;
“A Registrar to whom an application for registration under this Subdivision is made may refuse to register the applicant if, in the opinion of the Registrar, … “(Section 31)
“Subject to this section, a Registrar shall remove the name of a person from the register kept by that Registrar if he or she is satisfied that: …” (Section 33)
However the Act in Section 39 C, whilst the entitlement is qualified by the word “only” in part (1) in relation to age, qualifications/skills and “fit and proper person’, part (2) with respect to Conflict of Interest and Benefit to Business, the terminology, “the Registrar must take into account”.
“39C Entitlement to be registered as a marriage celebrant
(1) A person is only entitled to be registered as a marriage celebrant if the person is an individual and the Registrar of Marriage Celebrants is satisfied that the person:
a) is aged 18 years or over; and
b) has all the qualifications, and/or skills, determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of this paragraph; and
c) is a fit and proper person to be a marriage celebrant.
(2) In determining whether the Registrar is satisfied that the person is a fit and proper person to be a marriage
celebrant, the Registrar must take into account:
a) … d)
e) whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and
f) whether the person’s registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and
g) … “
Therefore Section 39 C is much more ambiguous and interpreted by the Department to mean actual and potential Conflict of Interest and/or Benefit to Business risks do not prevent the authorisation of people seeking to be a Commonwealth marriage celebrant or are grounds for de-registration of authorised celebrants.
It is also noted that the Code of Conduct and other parts of the Regulations may be used to strengthen Conflict of Interest and/or Benefit to Business provisions by specifying what “business interests or other interests” constitute an actual or potential Conflict of Interest or Benefit to Business in terms of the Celebrant’s own celebrancy private practice and /or “ another business that the person owns, controls or carries out”.
Rather the focus has become how the authorised celebrant intends to “manage” these risks. The outcome is that the authorised celebrant is encouraged to ‘separate’ activities that pose a risk with the consequence these activities are not transparent to the marrying public, and rather than being protected by the legislation, the marrying public are dependent on the personal ethics of a celebrant not to put personal gain before the needs of the couple. The latter is acknowledged by legislation as difficult for many people to do, especially when financial gain is a motivating factor.
Recommendation 14:
That in determining whether an activity has an actual or potential Conflict of Interest and Benefit to Business risk, the focus be on how that activity enables the independent celebrant to strengthen their primary ceremonial role (i.e. ceremony and celebration knowledge, values, skills and support) with the other two Subdivisions A and B as a guide, not the work opportunities within the commercial wedding industry.
With the three traditional professions – religion, medicine and law – their historical advantage means both the practitioner and the public have more awareness of the types of activities that would be, and be seen as, a Conflict of Interest and/or Benefit to Business.
For example:
- a priest owning a bridal shop and offering discounts on marriage services if the bride purchases a gown from his or her business;
- a minister owning a catering company, a reception centre, a hairdressing salon, a luxury car hire business or some other wedding related business and offering special package deals for using those;
- a lawyer selling a range of insurance products to assist with the client being able to afford lawyers’ fees;
- doctors offering to sell Amway products to assist with home hygiene or selling a range of alternative medicines to assist with the symptoms of an illness, but not addressing the treatment of the illness thus increasing the patients need for more medical services from that doctor.
The fact that individuals break or exploit the law, or that the law is difficult to administer, is no reason in itself to remove those aspects of the legislation. Society would have no laws if that were the case. Where the administration of the law is an issue, then the legislation itself needs review to clarify how that legislation or its administration can be improved.
For the Marriage Act to be consistent, the same underlying principles need to apply to the three subdivisions of authorised celebrants in the provision of marriage services.
It is CoCA’s position that if initial training and professional development in marriage law and regulation fees are required of one Subdivision then these requirements should be applied to all.
Please note: this is not saying that the same overall training and professional development activities should apply as the different groups of celebrants have different roles and responsibilities, rather only those aspects that relate specifically to marriage law.
If Conflict of Interest and/or Benefit to Business provisions are to be removed from Subdivision C it then should apply to all subdivisions.
Celebrants offering other ceremonies or other ceremony related services are accepted as part of the civil and religious celebrants roles and not viewed as Conflict of Interest and/or Benefit to Business e.g. funerals, namings, engagements, birthdays, anniversaries, renewals, boat blessings and perhaps other ceremonies and celebrations yet to be developed.
Applying the principle expressed in this recommendation would include those products and services in the ceremony itself that are normally associated with the services provided by churches and registry offices or courts. These activities are addressed in Recommendation 16.
Applying the principle expressed in this recommendation would exclude those activities that occur before and/or after the ceremony and those not normally associated with the services provided by churches and registry offices or courts.
For example, prior to the ceremony – hairdressing, beautician services, weight-control products, clothing and shoe purchase or hire, floristry, jewellery, car / vehicle hire, wedding planning /organising, accommodation, wedding gift products and services, migration agent services.
For example, after the ceremony – reception facilities, alcoholic and other beverage services, catering services, honeymoon accommodation and travel.
Part-time or full employment in any of the above activities should exclude a person from becoming or continuing to be authorised as a Commonwealth marriage celebrant.
Also services not able to be performed by the celebrant whilst conducting the ceremony (such as photography, videography, being part of a musical group) would need to be excluded.
Recommendation 15:
That where there are concerns about the overlap between “Profession” and “Business”, that the focus be on how a potential Conflict of Interest and Benefit to Business enables the independent celebrant to strengthen their primary ceremonial role (i.e. ceremony and celebration knowledge, values, skills and support) with the other two Subdivisions A and B as a guide).
There are services that are less clear but that may need more consideration against the current relevant principle “Could the benefit to business or conflict of interest threaten the validity of the marriage or the delivery of a high standard of professional conduct?” such as:
1. to enhance the celebrant’s skills:
Master of Ceremonies – this activity strengthens public speaking skills and provided the role at a reception upholds the Code of Conduct Section 3 Recognition of significance of marriage, could be an extension of the celebrant’s professional practice (although couples can feel pressured to use the celebrant’s service as an MC with this option.
2. services are usually associated with religious celebrants duties.
Professional services such as relationship education and counselling.
If the above principles had been applied, then celebrants providing marriage services would be far better equipped to provide a range of other ceremonies and celebrations, and as such reduce the need to consider wedding industry related products and services to make their celebrancy practices more viable.
Recommendation 16:
That the Attorney-General’s Department reconsiders its own definitions of the Conflict of Interest and Benefit to Business in regard to authorised celebrants charging for services directly related to the ceremony itself, especially those normally included in services charged by Ministers of Recognised Religions and Registry Offices.
The fixed fee was removed in 1995 so that independent civil celebrants could charge for products and services directly related to the ceremony itself, especially those normally included in services charged by Ministers of Recognised Religions to couples.38
In this context therefore, CoCA considers the Department needs to review these items in Option 1, in the table provided, identified as a Conflict of Interest and/or Benefit to Business:
- “Selling products to be used in the marriage ceremony, such as the jar and sand to be used in a sand ceremony or the ribbons to be used in a hand fasting ceremony.”
- “Changing additional amounts for ancillary products or services – such as charging for a bound copy of the marriage ceremony”
These examples imply the Department expects celebrants to apply a fixed fee for their marriage services regardless of how complex or simple the services they provide. Such assumptions would not be made of other professional practitioners, and are in contradiction to the reasons why Government removed the fixed fee for marriage services.
Likewise the assumption that celebrants cannot charge for products directly associated with the ceremony such as candles, sand, ribbons, etc. From a professional perceptive, the important issue is that these ancillary items can be itemized in the celebrant’s fees so the couple or family can obtain these products independently if they wish.
The implication of a ‘fixed’ fee or “one package” for all the possible services associated with the marriage ceremony means the celebrant would need to include the cost of all such products, services and travel averaged across the expected number of annual weddings and average them annually. The result is that couples wanting simple services would be unfairly charged an inflated fee to recompense the celebrant for the most complex marriage services they provide.
Some celebrants do choose to operate this way. However it is incorrect for the Department to imply that a celebrant cannot choose to charge for services in a different way. CoCA assumes this would be a restriction under Trade Practices legislation.
Likewise the Department needs to identify those services that authorised celebrants can charge that directly relate to the ceremony itself, especially those normally included in services charged of couples by Ministers of Recognised Religions and Registry Offices.
Such services are the provision of the ceremony space and the facilities usually supplied by the church and the registry offices. Seating, aisle runner carpet, carpet square to define the area for the wedding party to stand, PA system etc should all be considered as part of the services celebrants may provide and charge for should they so wish. As with the examples above, whether these products and services are included in the celebrant’s fee or itemized separately as optional extras should be the celebrant’s choice.
One area for further consideration is the provision of a chapel or building for the ceremony itself. There may be an argument that where the celebrant is able to provide a chapel or gazebo within their own residential property that this should be considered as part of the services the celebrant is able to charge for, either included in their fee or itemized separately.
However where the celebrant owns or operates a free standing chapel, is employed by a club, hotel or some other free standing facility that is not part of the celebrant’s own residence, that business activity should be excluded under Conflict of Interest and/or Benefit to Business provisions.
Executive Summary
Summary of Recommendations
Professional Development: Recommendations
Appendix 1
33. Extract 2002 Explanatory Memorandum: Option3 – Wedding Organisers. See Item 33 above.
34. Extract 2002 Explanatory Memorandum: Option4 – Wedding Organisers. See Item 33 above.
35. Extract 2002 Explanatory Memorandum - Implementation and Review (Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)
Ref: http://www.coalitionofcelebrantAssociations.org.au/for-celebrants/123-2017-coca-submission-on-opd-coi-and-b2b/517-extracts-from-the-2002-explanatory-memorandum
36. Letter from Kym Duggan Assistant Secretary Family Law Branch Attorney-General’s Department Canberra ACT to All Celebrant Representative Bodies
Ref: http://www.coalitionofcelebrantAssociations.org.au/for-celebrants/120-ag-discussion-paper-on-opd-and-conflict-of-interest/504-2002-letter-from-the-agd-on-conflict-of-interest
37. In the early days of the program, money was allocated for public relations work with Recognised Religions, the Registry Offices and the public to explain the concept and alleviate any concerns about this new role.
The fact that civil celebrants were providing alternative services to the ministers of Recognised Religions was largely well received. These religious celebrants did not feel comfortable marrying couples of differing faiths, or no religious faith at all.
The most challenging aspect was the appointment of women, particularly young women (in their twenties). There were 60,000 celebrants in the national, almost all male. Many were concerned that young and female celebrants, would not be able to carry the responsibilities of the role with suitable dignity and gravitas. How attitudes can change. The changing social norms, especially in relation to religious observance, and the work done by these pioneers have contributed to the huge success of the program.
However, civil celebrants have quietly gone about servicing the general public without seeing the need for programs to educate the community. Mass media and the IT age means that younger generations assume Australian marriage laws and the celebrants role is the same as that shown in America or Britain. Programs like “Married at first sight” do not help this trend to see the marriage ceremony as an incidental part of the big party, where suppliers of commercial wedding products and services place their focus.
38. 1992 Constitutional advice from Professor Michael Pryles
Ref: http://www.coalitionofcelebrantAssociations.org.au/for-celebrants/123-2017-coca-submission-on-opd-coi-and-b2b/516-1992-constitutional-advice-from-professor-michael-pryles
39. Appendix 1 - Adapted from the CoCA Response to AGD August 2012
Ref: http://www.coalitionofcelebrantAssociations.org.au/images/Submissions/CoCA-sub2012-09-24-final.pdf
